L.M.O. v. S.S. and A.S. Date:, 2015 BCPC 328

Citation: L.M.O. v. S.S. and A.S. Date: 20151116 2015 BCPC 0328 File No: F76102 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.M.O. APPLICANT AND: S.S. and A.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Appearing on their own behalf: L.M.O.

Appearing on their own behalf: S.S. and A.S. Place of Hearing: Nanaimo , B.C. Date of Hearing: November 2, 2015 Date of Judgment: November 16, 2015 [ 1 ] This is an application by L.O. (69) as the paternal grandmother for contact time with the boys X.S. (8) and S.A.S. (6) the children of her son S.S. (38) and A.S. (33). [ 2 ] L.O. is a retired pensioner living in Nanaimo. S.S. is self-employed. A.S. does not work outside the family home which as of June of 2015 was relocated from Nanaimo to the Ucluelet area. [ 3 ] Both S.S. and A.S. oppose contact to the children by L.O. for a variety of reasons which would include the following: (

a) long-standing conflict between S.S. and L.O. which at times has been physical in nature; (

b) concerns that L.O. is prone to “spoil” the boys on visits and that they are difficult to manage after visits; (

c) concerns by A.S. that the prospect of visits creates tension in their household because of the conflictual nature of the relationship between S.S. and L.O. and a wish not to have this element in the family life; (

d) a concern that L.O. may not be appropriately vigilant in protecting the boys from her condition of being Hep-C positive; (

e) a concern that L.O. is critical of their parenting of the boys and under-mining of their family situation at times; (

f) a concern that L.O. is not respectful of their role as parents of the boys; CONFLICT ISSUES [ 4 ] A.S. and S.S. are married and have been together for 12 years. A.S. has always known S.S. to be in a conflict with L.O.. S.S. says he has not got along with his mother since the age of 15. The primary source for this conflict he describes as his finding L.O. to be overly controlling.

Secondary sources of conflict appear to relate to L.O. having placed S.S.’s sister for adoption and her past career as an escort. [ 5 ] An additional concern is that the parents are aware that L.O. has reported them to Family and Child Services once in the past and that they suspect that she also initiated a second report through another party. Neither report led to any adverse finding against the parents. GRANDMOTHER’S HISTORY OF INVOLVEMENT WITH CHILDREN [ 6 ] While L.O. has had contact with the boys this contact has not been extensive or regular.

The boys have more regular and positive contact with the parents of A.S. who also live in Nanaimo. L.O. says that there have been 8 times when the family has relocated without notice to her of any contact address most recently in June of 2015. This application was initiated by way of substitutional service to an email address. [ 7 ] Prior to the June 2015 relocation, L.O. says that she lost contact with the family from about April of 2013 to Christmas of 2014.

She says that she had some contact at that time but did not feel accepted and “backed away” from contact until April of 2015. [ 8 ] A.S. says that the boys “enjoy” seeing L.O. and also speak with her on the telephone at times. The tenor of A.S.’s evidence was that the enjoyment that the boys derived from the contact was not sufficient to off-set the tension and negativity that surrounded the contact from the parent’s perspective. OBSERVATIONS [ 9 ] The tension between S.S. and L.O. was clear and palpable even in the course of the hearing.

It would not be realistic to attempt to attribute fault to either one of them for the situation. It exists and is long-standing. It presents that A.S. is sometimes capable of bridging the gulf between them but that this is stressful for her. X.S. has been diagnosed with what is described as a “mild form of autism” and has a learning assistant in school. This is an additional reason for the parents wishing to have as little disruption and conflict in their household as possible. L.O. says that he boys are her only family and that she wants them to know that she loves them.

LAW AS TO CONTACT TIME/ACCESS BY GRAND-PARENTS: Family Law Act , s.59 Orders respecting contact 59

(1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact.

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) An access order referred to in

section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be an order made under subsection (1) of this

section for contact with a child. Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. [ 10 ] In considering my decision in this matter I have had regard to the above law and also to the following case law: A: Blackburn v. Fortin , 2006 O.T.C. 484 , Ont. Sup. Ct. of Justice, Smith, J. Analysis: 25

Section 21 of the Children's Law Reform Act, R.S.O. 1990, c. C-12 , provides that a parent or any other person may apply to the court to obtain an order respecting access to a child. The words "any other person" would include a grandparent of a child.

Section 24 of the CLRA states that the merits of an application shall be determined in accordance with the best interests of the child or children. The factors the court must consider to determine the best interests of the child are set out in Section 24(2) of the Children's Law Reform Act above. The court shall consider all of the needs and circumstances of the child including, (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child and, (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where such views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessities of life and any special needs of the child; (

e) any plans proposed for the care and upbringing of the child; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; and (

g) the relationship by blood or through an adoption order between the child and each person who is a party to the application. The primary factors to be given the most weight in determining the needs and circumstances of the children involved in thiscase, regarding access to their grandmother are:

a) the love, affection and emotional ties between the children and Mrs. Blackburn; (f)the permanence and stability of the family unit with which it is proposed that the child will live; and

g) the relationship by blood betweenthe child and Mrs. Blackburn, their grandmother. 26 The leading case in Ontario dealing with the question of access by a grandparent to grandchildren, against the wishes of theparents, is Chapman v. Chapman (2001), (ON CA), 141 O.A.C. 389 (O.C.A.). The court quoted Chief JusticeMcLachlin who stated in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 (S.C.C.), that when assessing the best interestsof the child, "each case turns on its own unique circumstances." 27 In Chapman, supra, the Court of Appeal stated, "A relationship with a grandparent can and ideally should enhance the emotionalwell-being of a child. Loving and nurturing relationships with members of the extended family can be important for children.

When thosepositive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation ofthe parents, the court may intervene to protect the benefit of the relationship." As a result, I must consider

a) whether a positiverelationship existed between Mrs. Blackburn and her grandchildren, and

b) whether the parents have imperiled the relationship byacting in an arbitrary manner. These principles have also been referred to in Giansante v. Di Chiara (ON SC),[2005] O.J. No. 3184, [2005] W.D.F.L. 4015 (Ont. S.C.), McLaughlin v. Huehn, [2004] O.J. No. 5918, 2004 ONCJ 426 (Ont. S.C.),Parsons v. Parsons (2002), (ON SC), 29 R.F.L. (5th) 137 (Ont. S.C.), R.(N.V.) v. K.(J.) (2001), 239 N.B.R. (2d) 89(N.B. S.C.). 28 In the Chapman case Abella, J.A., as she then was, stated as follows, "These are loving devoted parents committed to theirchildren's welfare.

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act inaccordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should berespected, including decisions about whom they see, how often and under what circumstances they see them."

a) Did a positive relationship exist between Mrs. Blackburn and her grandchildren? 29 The relationship between Mrs. Blackburn and Christophe was a normal grandmother to grandchild relationship, between 1997when he was born and 2003, a period of almost six years. The relationship consisted of visits at the children's home and at Mrs.Blackburn's home eight to ten times per year plus the occasional week where the grandparents cared for Christophe when the parentswent on a holiday for a week to Mexico and when Gabrielle was born. Mrs.

Blackburn's relationship with Gabrielle extended overapproximately three years when the grandchild was under three years of age, and was a normal relationship under the circumstances,but was not well developed and it is unlikely that Gabrielle would have retained any extensive memory of her grandmother at this pointin time. 30 I find that the relationship between the grandchildren and Mrs. Blackburn was not a special relationship, such as those developedby caring for the children over an extended period of time on a daily basis.

As a result I find that there was no special bonding betweenthe grandchildren and their grandmother. However, I do find that the normal contact between Mrs. Blackburn and her grandchildren,with visits occurring eight to ten times per year and with weekly telephone contact, did create a positive relationship, especially withChristophe. [4] Did the parents imperil the relationship by acting arbitrarily? 31 The evidence was uncontested that the parents decided on or about September of 2003 to terminate all contact between theirchildren and the children's grandmother, Mrs. Blackburn.

As a result, their decision has imperiled the relationship between Mrs.Blackburn and her grandchildren. The real question to be decided is whether the parents acted arbitrarily, when cutting off access toMrs. Blackburn, such that the court should intervene and order access to occur. 32 In the Chapman case the parents did not dispute the right of the grandparents to have access, but wished to decide when and underwhat circumstances access would occur.

This is not the situation before me, as the parents seek to deny all contact between thegrandmother and her grandchildren. 33 In the Giansante case, (above), the court ordered access to the maternal grandparents, where the mother of the children had diedin a car accident and the father denied access to the maternal grandparents for reasons unrelated to the best interests of the children.This case has unique circumstances, where a parent died, and the court intervened to maintain the positive influence of maintaining therelationship between the grandchildren and their maternal grandparents and extended family, which was found to be in thegrandchildren's best interest.

34 In the Parsons decision, (above), access was granted to the maternal grandparents against their daughter's wishes, where the five-year-old grandchild had enjoyed daily contact with his maternal grandmother over a five-year period. The grandparents were slow toaccept the mother's homosexual relationship with another woman and this led to access being denied. The denial of access wasunrelated to the child's best interest and a special relationship had developed between the grandchild and the grandmother. 35 In R.(N.V.) v.

K.(J.), (above), the court granted access to the paternal grandparents where it found that the grandchildren hadbonded with the grandparents and the children's parents were separated from each other. The court found that the children's mother wasdenying access to punish the grandmother for her son's misconduct, namely having assaulted the children's mother. The decision of themother was not based on the children's best interests. 36 The British Columbia Court of Appeal in F.(N.) v. S.(H.L.) (1999), 1999 BCCA 398 , 127 BCAC 66 (B.C. C.A.) upheld thefollowing findings made by Justice Brenner: (

i) The onus is on the applicant to demonstrate that the proposed access is in the child's best interests. (ii) The custodial parent has a significant role. The courts should be reluctant to interfere with the custodial parent's decision andshould do so only if satisfied it is in the child's best interests. (iii) In cases of real conflict and hostility the child's best interest will rarely if ever be served by granting access. B. C.T. v.

J.T., 2007 BCPC 112, Skilnick, PCJ: [11] In this case a grandmother of a 10 year old child had already obtained an order for supervised access of approximately one dayevery two months for 3 hours. The application was for increased unsupervised access and a counter application for no access. Theparents of the child were separated but united in their opposition to the access.

The court found that there existed an atmosphere of “…conflict, resentment and mistrust … among the parties.” The learned trial judge reviewed the applicable law as set out below in paras.25 through 30 under the former Family Relations Act and also considered the supervision issue at paras. 46-49 as also set out below: Applicable Law and Analysis 1. Access Generally 25 In making a decision concerning access to a child, a court must be governed by section 24 (1) of the Family Relations Act, whichreads as follows:

(1) When making, varying or rescinding an order under the Part, a court must give paramount consideration to the best interests ofthe child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child'sneeds and circumstances: (

a) the health and emotional well-being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise thoserights and duties adequately. 26 This

section was amended by the Legislature in 1998 to address applications by persons other than the parents of a child such asgrandparents. Subsection (1.1) was added, which reads as follows: (

b) The references to "other persons" in subsection (1)(

c) and to "each person" in subsection (1)(

e) include parents, grandparents,other relatives of the child and persons who are not relatives of the child. 27 In Young v. Young (SCC), [1993] 4 S.C.R. 3, the Supreme Court of Canada set out the applicable law forconsideration by a court in deciding issues of access, which I now paraphrase as follows: (

c) The power of the custodial parent is not a "right" granted by courts for the benefit of that parent. Instead, the child has a right toa parent who will look after his or her best interests. (

d) The custodial parent a duty to ensure, protect and promote the child's best interests. That duty includes the sole and primaryresponsibility to oversee all aspects of day-to-day life and long-term well-being, as well as major decisions with respect to education,religion, health and well-being. (

e) Child placement decisions should safeguard the child's need for continuity of relationships and should reflect the child's (not theadult'

s) sense of time. This need for continuity generally requires that the custodial parent have the autonomy to raise the child as he orshe sees fit without interference with that authority by the non-custodian. (

f) The right to access is limited in scope and is shaped and governed by the best interests of the child. The role of the partyexercising access is that of a very interested observer, giving love and support to the child in the background. (

g) The right to access and the circumstances in which it takes place must be perceived from the vantage point of the child. Whereverthe relationship to the non-custodian conflicts with the best interests of the child, the furtherance and protection of the child's best

interests must take priority over the desires and interests of the non-custodian. As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must becrafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose. (

h) Sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship should be removedor mitigated. While caution may be had about the vulnerability of access rights by abuse of authority by a vengeful custodial parent,courts should not be too quick to presume that the access concerns of the custodial parent are unrelated to the best interests of the child. (

i) When disagreements between parents do reach the courts, the judge must always draw the line in favour of the best interests of thechild, from a child-centred perspective. The best interests of the child cannot be equated with the mere absence of harm. Courts mustattempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or herparents and the particular environment in which the child will live. 2. The Law Concerning Grandparent Access 28 In Chapman v. Chapman (BC SC), [1993] B.C.J.

No. 316 (B.C.S.C.), Brenner J. summarized the law pertainingto grandparent access at para. 24 as follows: 1. The onus is on the applicant [grandparent] to demonstrate that the proposed access is in the child's best interests. 2. The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent's decision[regarding access to a grandparent] and should do so only if satisfied that it is in the child's best interests. 3. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent.

While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis fordenying access to non-parents, in cases of real conflict and hostility, the child's best interests will rarely, if ever, be well served bygranting access. 29 These principles were followed by the British Columbia Court of Appeal in N.F. v. H.L.S. [1999] B.C.J. No. 1438. These principlesare also adopted by the courts of this province in Milne v. Milne (BC CA), [1985] B.C.J. No. 1853 (B.C.C.A.); D.W.M.v. J.S.M., D.F. and C.F. 2003 BCSC 1229; Lambrechts v. Lambrechts [1995] B.C.J.

No. 1667 (B.C.S.C.); Yaghoobian v. Yaghoobian[1995] B.C.J. No. 2535 (B.C.S.C.). 30 In Parmar v. Parmar [1997] B.C.J. No. 2094 (B.C.S.C.) Master Nitikman wrote the following useful

summary of the law pertainingto the rights of grandparents for access to children: First, grandparents do not have a legal right to custody of or access to their grandchildren. They may, however, have legal standing toapply for custody or access depending upon the relevant family law regime in the particular province. In B.C., ... they do have thenecessary legal standing. Second, if grandparents are successful in their application for access, their entitlement is different from the right and entitlement of aparent.

Third, in making any order for custody or access, the court is required to make the best interests of the children its paramount concern. Fourth, depending upon the particular provincial legislation, one of the factors for the court to consider in deciding what is in the bestinterests of the children may be the love, affection, and similar ties that exist between the child and the applicants. In B.C. this is a factorfor the court to consider. Fifth, in normal circumstances, it is in the best interests of children to have contact with their grandparents and extended familymembers.

Sixth, considerable weight should be given to the wishes of the custodial parent and care should be taken to ensure the court does notinterfere unduly with the inherent right of a parent to determine the course of their child's upbringing. Seven, generally speaking, grandparents have to accommodate themselves to the parent's decision regarding the amount and type ofaccess. Eighth, the child's preference should be noted and given proper consideration based on the child's age. Ninth, when the court finds it appropriate to grant specified access, the amount of access allowed is quite limited: C. J.L. v.

D.L., 2009 BCPC 225, Wingham, PCJ. [12] This case involved an interim application by a grandmother and step-grandfather to an 8-year old granddaughter which wasopposed by the respondent father and step-mother. The application was not granted as the court found that the atmosphere of conflictthat the child would be exposed to outweighed the bonds of love between the child and the applicants. The legal reasoning was asfollows in part: 16 In any proceeding involving issues of guardianship, custody and access to children, the focus of the court must be on the bestinterests of the child.

Section 24 of the Family Relations Act provides as follows: 24(1) When making, varying or rescinding an order under this part, a court must give paramount consideration to the best interests ofthe child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's

needs and circumstances: (

a) the health and emotional well-being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately. 17

Section 35 of the Family Relations Act permits the court to make an order for access to persons who are not parents of the child inquestion. Where an application is made by a non-parent for access to a child, the onus is on that person to demonstrate that theproposed access is in the best interests of the child. The court should recognize that the custodial parent of the child has a significantrole and the court should be reluctant to interfere with the decision of the custodial parent and only do so if the court is satisfied that itis in the child's best interests (Chapman v. Chapman, (BC SC), [1993] B.C.J.

No. 316 (B.C.S.C.); N.F. v. H.L.S.,[1999] B.C.J. No. 1438 (B.C.C.A.)). 18 While it is not a matter of law that access should be denied based on animosity between the parents and the parties seeking access(Lukyn v. Baynes, 2008 BCSC 8 , [2008] B.C.J. No. 3 (B.C.S.C.)), it is generally not in the best interests of a child to be placedinto circumstances where there is real conflict between the custodial parent and the non-parent.

In such cases the child's best interestwill rarely be well served by granting access (Chapman, supra). and further at paras. 26-28: 26 The Respondents are the parents of R.L. and are charged with acting in her best interests.

They have determined that it is her bestinterests that she not have access with her grandparents given the atmosphere of conflict that exists. 27 While I recognize that the relationship between a grandparent and a child can be and should be a special one, I am of the view thatit is not in R.L.'s best interests to be exposed to an atmosphere of conflict between her parents and her grandparents. 28 I am not satisfied that in this case the Applicants have met the onus on them, on an interim basis, to establish that it is in the bestinterests of R.L. for them to have access to her.

Their application for interim access is dismissed. D: N.F. v. H.L.S., 1999 BCCA 398, Esson J. A. [13] This was a case where the mother of a child objected to access by the grandmother as she was a smoker and in the past had “…carried on an escort service out of her home.” [14] Access was granted at the Provincial Court level and then denied on appeal to a Supreme Court judge. The grandmotherappealed to the Court of Appeal which upheld the denial of access for the following reasons: 6 The appeal court judge found three errors.

The first was that the Provincial Court judge erred in law: ... in that she examined the best interests of the child solely, exclusively, and only in terms of the child's rights as an individual to haveaccess to her grandmother without considering and ascertaining what weight, if any, to give to an additional pertinent factor, namely,the interests of the custodial parent in bringing up the child and in making moral decisions for her child. ...

The second error he found was: ... in holding, as she did, that there was an onus upon the mother to establish that if, because of access to the grandmother, the childshould become aware of her grandmother's occupation, this would produce physical or emotional harm to the child. It goes without saying that there is no such onus on the custodial parent. The onus on the custodial parent is simply to show notnecessarily harm but, rather, that the best interests of the child would not be served by such access.

The appeal court judge said the third error was: ... in failing to consider at all the moral aspect of the appellant mother's objection to the grandmother's access to the child because of thegrandmother's occupation. The learned trial judge, in considering the mother's objection, looked at it solely and only from the point ofview of harm to the child of a physical or emotional nature. 7 In his reasons for judgment, Mr. Justice Owen-Flood extensively canvassed the authorities. I do not propose to refer to most of them.One decision of the Supreme Court of Canada on which he placed particular emphasis is B.(R.) v.

Children's Aid Society of MetropolitanToronto (1995), (SCC), 9 R.F.L. (4th) 157 (S.C.C.). One of the passages quoted in his reasons was this passage in thereasons of Mr. Justice La Forest at p.373: As children are unable to assert these, our society presumes that parents will exercise their freedom of choice in a manner that does notoffend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, stateinterference in order to balance the rights of parents and children will arise only in exceptional cases.

In fact, we must accept thatparents can, at times, make decisions contrary to their children's wishes -- and rights -- as long as they do not exceed the threshold

dictated by public policy, in its broad conception. For instance, it would be difficult to deny that a parent can dictate to his or her childthe place where he or she will live, or which school he or she will attend. However, the state can properly intervene in situations whereparental conduct falls below the socially acceptable threshold. But in doing so, the state is limiting the constitutional rights of parentsrather than vindicating the constitutional rights of children... . That case, of course, was dealing with state interference with parents in respect of parenting.

But, nevertheless, in my view it hassubstantial application. It would be equally unacceptable for there to be unrestrained judicial interference with the rights of parents todecide what is in the best interests of their children. 8 Another authority which was cited is the decision of Mr. Justice Brenner of the Supreme Court of British Columbia in Chapman v.Chapman, (BC SC), [1993] B.C.J. No. 316 DRS 93-12683, Vancouver Registry 92-3512. That case is very much onpoint in its facts. It involved the application of a grandmother for access to a 4 year-old child.

The daughter-in-law of the grandmother,who was the custodial parent, refused access because of problems which had taken place in the past involving a former spouse of thegrandmother, even though that spouse had separated from the grandmother who was then living with another man. I refer to the case forthis summation of the relevant principles, which appears in paragraph 24: 1. The onus is on the applicant to demonstrate that the proposed access is in the child's best interests. 2. The custodial parent has a significant role.

The courts should be reluctant to interfere with a custodial parent's decision andshould do so only if satisfied that it is in the child's best interests. 3. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent. While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis fordenying access to non-parents, in cases of real conflict and hostility, the child's best interests will rarely, if ever, be well served bygranting access.

The third paragraph in that analysis is I think primarily directed at the particular fact situation in that case and perhaps has somewhatless application to the different facts of this case, where the parent's refusal does not arise from a history of conflict and hostility but,rather, from concern about moral hazards. It nevertheless states a principle which must be kept in mind in dealing with issues of thiskind.

The first two points made in that analysis I would endorse as being applicable to all cases of this kind. 9 For the sake of completeness, because we were told by counsel that there were no cases on point in this Province, I will refer toMilne v. Milne (1985), (BC CA), 44 R.F.L. (2d) 241, a decision of this Court. Again, that case involved an applicationfor access by a grandmother. In the two lower courts access was denied and that decision was upheld in this Court.

The judgment is ashort one but is significant as applying essentially the principles to which I have referred. [15] I have included extracts from these cases for the information of the parties. No case is exactly the same as any other case andthe ones that I have made reference to are those that I consider most relevant to the facts before me. The dominant theme of the statutesand case law is of course the best interests of the child and the onus on the grandparent to establish that contact is an overall benefit inthat context.

The benefit of contact to the grandparent, no matter how great that might be, is legally irrelevant to this analysis. [16] In the present case there is a joint decision on the part of both parents against contact by L.O.. The factual situation here is verymuch on par with that described in paragraph 43 of the Blackburn v Fortin decision. The C.T. v. J.T. decision involves a situation wherecontact (at that time “access”) had previously been ordered and an adjustment to the terms of that contact was being sought.

The J.L. v.D.L. case was only an interim application but has parallels to this case and correctly summarizes the existing law in this area. [17] The decision in N.F. v. H.L.S. would present as the leading authority in this province in terms of the applicable law although thefacts in that case are only peripherally similar to those before me. DECISION [18] Based on the facts as I see them and the law that I have referred to above I find that the Applicant has not met the onus ofestablishing that it is in the overall best interests of the children to have a formal order for contact made.

I also do not consider that therewould be any benefit or useful purpose served by ordering a s. 211 report as to the views of the children at this time. [19] I would commend to the parties once the turmoil and upset that this process may have caused has diminished to be mindful ofcertain things. Firstly, it can be seen from the type of access/contact time that is considered such as at paragraph 5 and paragraph 39 ofthe C.T. v.

J.T. decision: 5 In April of 2002, the Applicant brought an application for access to the child and on January 9, 2003, the parties reached agreementat a family case conference on a consent order which essentially gave the Applicant access one Saturday each month from 10:00 a.m. to1:00 p.m.

This order was varied on April 29, 2003 requiring it to be supervised and again on July 10, 2003 to provide for a three houraccess visit once every two months. 39 For these reasons I find that it is in this child's best interests that the amount of access remain the same as ordered, that is, oneaccess visit of three hours duration every second month. In order to minimize conflict I will specify that access during those months willbe on a Saturday selected by the mother and during any three consecutive hours she selects between 10:00 a.m. and 5:00 p.m.

I amgiving the mother this discretion because I am mindful of her other responsibilities as compared with those of the Applicant, andbecause she has the best appreciation of what times are best for A. and therefore in his best interests. The order will provide that themother will give the Applicant at least 10 days notice written of what day and time she selects so that there is reasonable opportunity tomake arrangements for transportation.

In the event that no notice has been given prior to the 20th day of a given month, the Applicant'saccess will occur on the last Saturday of that month from 1:00 p.m. to 4:00 p.m. and as hypothetically considered at paragraph 46 of the Blackburn decision:

46 If I had weighed the benefits against the negative effects on the grandchildren differently and had been satisfied on a balance of probabilities that the benefits outweighed the adverse effect on the grandchildren, then I would have ordered access to the grandmother of four visits of four hours each per year, one in the summer holiday period and one during the winter period, to be arranged when the family were visiting in Jonquière, and two visits to be arranged in Cornwall, with the objective of having a visit occur approximately every three months. 47 I also wish to state that in my opinion, maintaining contact between the grandchildren and their grandmother is desirable and should be encouraged, provided the grandchildren are not involved in any conflict and provided Mrs.

Blackburn respected the appropriate boundaries of her role as a grandparent.

However I am not prepared to overrule the parents' joint decision to stop contact between their children and their grandmother, for the reasons previously stated. that even where contact time is granted it is not extensive. [ 20 ] Secondly, that generally speaking as the children get older there may be more relevance to a s.211 report and the children may be considered less vulnerable to whatever tension continues to exist between the adult parties. [ 21 ] Thirdly, that life can be short and children generally benefit from inter-generational contact and being cut-off from it can create a vacuum that is more puzzling and haunting for a child than dealing with the real-life plus and minuses that are inherent in most family relationships. [ 22 ] I would encourage the parents to consider fostering some contact between the boys and L.O. along the general lines of the above examples or possibly through the use of the internet.

I would also encourage L.O. to try and find some sort of counsellor or intermediary who could coach and/or assist her to make such contact as does happen go as well as possible. [ 23 ] If the parents are able to foster some contact at times and on terms of their choosing this would likely forestall the necessity for any future application by L.O. and the possibility of a different result which would lock the parties into a fixed

schedule not of their choosing. [ 24 ] It would be recommended that the parents of the boys keep L.O. provided with a mailing address where she could send cards and letters for the boys; facilitate the boys making some telephone contact with L.O. from time to time and possibly arrange for L.O. and the boys to see each other at some point when the family is in Nanaimo for other reasons. In the event that L.O. finds that a prolonged period (for example over a year from now) passes without meaningful contact along the above lines she would be at liberty to bring a further application of this nature. BY THE COURT The Honourable J.D. Cowling, PCJ